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Saturday, March 5, 2011

UPDATED: Pennsylvania's Strong Drilling Oversight Program: the NYT Scandal of the News Not Fit To Print

Pennsylvania has the strongest oversight of gas drilling in the United States. This post will detail by year the actions taken by Pennsylvania to oversee the gas drilling industry that supports this statement. The original Sunday, February 27th story willfully ignored, shunted into "document readers," or otherwise manipulated critical actions and facts to create a fictional, dramatic narrative of lax regulation and lax oversight in Pennsylvania.

Drama served the NYT's commercial purposes that the NYT nakedly revealed by releasing this story on the night of the Academy Awards, when Gasland added spice and interest, and by pairing the February 27th story on its website with material celebrating an anti-drilling celebrity activist.

Of course, a factual, accurate account of oversight in Pennsylvania would have been good journalism, a public service, but perhaps boring. Such an account would have fair criticisms to make as well. But it would have included much of the information that I provide in this piece and could not have had the narrative of lax regulation and oversight to describe the Department of Environmental Protection's regulation of the gas industry.

Instead of good journalism, the NYT went for drama and scandal and created ironically both in the February 27th article itself. The basic method of the piece was to exclude from the main article discussion of the many, many strong oversight actions taken by the Pennsylvania Department of Environmental Protection.

Stated chronologically the following is what the NYT had to ignore, move out of the February 27th article itself, manipulate, or otherwise conceal to write its February 27th story. Here is why Pennsylvania's gas drilling oversight program is the strongest in the nation.

2008

1. 1400 violations issued by DEP to gas industry from January 1, 2008 to June 30, 2010. As the Pennsylvania Association of Land Trusts and many others commented, 1400 violations is a lot. The Land Trusts Association's excellent report on the violations received enormous coverage by Pennsylvania's media (as it should have). The 1400 violations proved that DEP was actively overseeing the industry and enforcing rules. And it raised legitimate concerns about the performance of the gas industry in complying with rules and operating safely.

Despite more than 3,800 words in the Sunday, NYT article, there was no space to print "1400 violations" to the gas industry issued by DEP. It is a jarring number and contradicts powerfully the fictional narrative of lax oversight.

2. Also not in the NYT report were any mentions of orders to stop drilling for weeks and months to some companies. No mention of orders to some companies to stop fracking for weeks and months. No mention of orders requiring companies to pay to fully clean up spills. No mention of orders to companies to fully pay to clean up leaks. No mentions of orders to plug gas wells at great expense to companies and landowners who lose royalties. No mentions of orders to companies to spend tens of millions of dollars repairing gas wells. No mention of the major investigations of practices conducted by the DEP. There are so many that they literally would fill not one book but many.

Of course other reporters and media have covered heavily these enforcement actions. Some of these enforcement actions have drawn national and even international coverage. The many, tough enforcement, regulatory, and oversight actions taken by DEP are part of the public and media record.

But for this reporter and the February 27th article, they were a problem. What to do? Ignore them because they contradict a fictional narrative of lax regulation and oversight.

3. Pennsylvania adopts Water Plan requirement for drilling. The Water Plan requirement was the first of 4 major regulatory actions to strengthen rules across the board to protect waters and regulate gas drilling.

Following 2 cases where water withdrawals for gas drilling damaged streams, Pennsylvania required in 2008 that every application to drill have a water plan. The water plan must specify the amount of water that will be used and the source of the water. If the water is being withdrawn from a river or stream, the withdrawal is judged against a protective standard for the stream. The stream is assumed to be in drought condition and the withdrawal is approved only if it would not damage a stream in a drought condition. This is early, strong oversight.

The Water Plan requirement of course was completely ignored in the NYT February 27th story as it strongly contradicts the fictional narrative of lax regulation and oversight.

4. Pennsylvania DEP commences emergency rulemaking to raise the fee charged to apply for a Marcellus drilling permit. The fee was also raised for all applications but the non-marcellus fee increase was not put into the emergency rulemaking package. All revenues from the fee increase would be dedicated to hiring additional gas oversight staff. The fees were raised and revenues increased from less than $1 million per year to more than $10 million per year.

The fee increase was ignored in the article because it contradicts the fictional narrative of lax regulation and oversight.

5. Pennsylvania DEP issues drinking water advisory to the public in the Pittsburgh region when TDS levels on the Monongahela river exceed the secondary drinking water standard of 500 ppm.

The NYT article deliberately misleads the reader to conceal the DEP oversight role and says "local officials" advised the public.

6. Pennsylvania DEP orders municipal treatment systems on the Mon River that had been taking drilling waste to cut by 95% receipt of drilling waste. The DEP also secures agreement from coal mining operations to reduce their discharge of mine water. DEP also contacts West Virginia DEP to seek assistance because the water was crossing the Pennsylvania border already at the 500 ppm level. Pennsylvania DEP also coordinates actions with the Army Corps of Engineers.

The NYT Feb 27th article ignores all of this while discussing the events on the Mon and describing those events with anonymous quotations in the most dramatic manner. The exclusion of the orders to the municipal systems to cut by 95% their waste flow was deliberate and done so again because to include it would have powerfully contradicted the fictional narrative of lax regulation and lax oversight.

7. Internal decision is made to commence hiring additional oversight staff for gas drilling. This decision was made possible by the fee increase discussed in point 3.

8. DEP puts on its website the names of chemicals used in fracking.

NYT article does not mention this action as it powerfully contradicts the fictional narrative of lax regulation and oversight.

9. Internal discussions commence about a new rulemaking to end Pennsylvania's historic practice of allowing drilling waste to be discharged with partial treatment but no treatment for TDS as Marcellus drilling meant that volumes would increase and overwhelm streams ability to keep TDS levels below 500 ppm.

2009 (Major enforcement actions continue throughout the year. See point 1).

11. DEP begins hiring staff that would raise staffing levels from 88 to 202 from 2008 to 2010. Pennsylvania leads the nation in hiring staff. No other state can match or even come close to Pennsylvania's hiring record. In 2009, 37 new staff were hired.

Concealed in a single sentence that describes several actions late in an ocean of ink the persistent, careful reader reads the word "doubling" of staff. That is it.

Reporting the facts and that Pennsylvania led the nation in hiring gas oversight staff would be devastating to the fictional narrative of lax regulation and lax oversight.

It was a big problem for this reporter. You can see the tricks and manipulations he used. In my opinion, this article demonstrates that indeed he is a skilled practitioner of the dark tools of journalism that are used to mislead the reader.

12. DEP completes gas drilling fee increase package.

NYT article provides not information about the commencement or completion of one of the largest fee increases in the history of DEP. To do so would powerfully contradict the fictional narrative of lax regulation and oversight.

13. DEP opens new gas oversight office in Williamsport for new staff and to move staff closer to a major new area of gas drilling so that staff can more efficiently oversee the gas industry.

NYT article does not report it.

14. DEP commences rulemaking to end practice of allowing unlimited discharges of drilling waste into rivers and streams and to create a watershed standard to protect rivers and streams from all sources of TDS pollution. The proposed rule singles out gas drilling waste for the toughest treatment by proposing an end of pipe discharge standard and not an in-stream standard.

NYT article does not mention the commencement of this rulemaking in 2009 and has only a few words at all on the new rule in the main article. Instead the reporter puts all the information that powerfully contradicts his narrative of lax regulation and oversight in a "document reader" that most readers will never read.

18. DEP commences stopping drilling truck traffic to do radom truck stops. FRACNET is born and continues forward. State police participates in the oversight. State police and DEP put out of service 40% of the trucks stopped.

NYT ignores state police/dep truck stops as they contradict the fictional narrative of lax regulation and oversight.

2010 (Major enforcement actions continue throughout year. See point 1).

21. Major enforcement actions continue on a whole range of matters, including on a blow out in Clearfield county and gas migration cases in Dimock, Susquehanna county.

22. DEP orders drilling stopped, fracking stopped, plugging of wells and gas well repairs to stop gas migrating in Dimock at costs of millions. By December methane is removed from 14 of 19 impacted wells. DEP also issues fines totaling more than $1.1 million to the driller.

23. DEP wins payments to the impacted families of twice the property value, and they average $200,000. Families keep their properties and mineral rights. No state has won payments of this size to compensate families for gas migration to their property.

A plan to build a pipeline to serve the 19 families triggered massive local opposition, with thousands signing a petition not to build it, local officials promising to block the pipeline, and influential Republican state senators announcing their oppostion to the pipeline. The costs of the pipeline would have been approximately $10 million and by December 2010 methane had been removed from the water of 14 of 19 families. Opponents of the pipeline pointed to these costs and the concern that the state would not be able to recover the line's costs from the drilling company as some reasons for their opposition. Right or wrong, the line was not going to be built after Governor Rendell left office in the face of massive local opposition.

24. DEP opens another new staff office to move more oversight staff closer to new areas of drilling to increase efficiency of oversight. This one in Scranton.

25. DEP equips staff with camera, vehicles and other tools needed for oversight.

26. DEP updates the chemical list on its website for chemicals used in fracking and informs the public of the new more comprehensive chemical list.

27. DEP volunteers in May 2010 for STRONGER to do an independent review of its gas drilling oversight program. STRONGER issues positive report on September 24th, 2010.

The stronger report was deliberately excluded from the Feb 27th article. It was an independent review of the regulatory program at the time the NYT was creating a fictional narrative of lax regulation and lax oversight. On February 27th, I asked why he had excluded the report? The reporter said it was out of date, a transparently false statement, again offering one of many windows into this reporter's skilled practice of the art of misleading.

28. DEP implements new state law requiring the publication and release of gas production data.

29. DEP puts on its website a report of all the violations issued to the gas drilling industry and updates monthly.

30. August 2010 new TDS rule becomes effective. The rule was opposed by the drilling industry, coal industry, Pennsylvania Chemical industry, Pennsylvania Chamber of Business and Industry, the Allegheny Conference as too tough and expensive. It was supported by the Pennsylvania drinking water companies, the Philadelphia Water Department, and nearly all environmental organizations.

31. November 2010 mandatory 150 foot buffer rule becomes final for 22,000 miles or one-quarter of Pennsylvania streams and all of Pennyslvania's High Quality or best streams.

32. DEP with DCNR issue joint policy on review of any applications for permits to drill in state parks.

33. DEP issues technical guidance document on the issue of aggregating air emissions from drilling equipment.

34. Gas Drilling Standards Rule to set state of the art standards for gas drilling that commenced in 2009, is approved by the Independent Regulatory Review Commission in December 2010 and becomes final on February 5, 2011.

In conclusion, I have been among the first to say that Pennsylvania's laws still need some further tightening (bonding, max fines, setbacks as examples). I have been the first to say that oversight staffing should be increased as the industry grows. I have been the first to say that rules do no good unless they are enforced and that regulators must be professional, independent enforcers of the rules. I have been the first to say events may show rules need to be strengthened.

And I was the first to say, "Test the Waters," in response to the original NY Times story. Pennsylvania's regulatory program can be improved and it should be. The test results will show whether the August 2010 rule is tough enough and working or not. That will be a good thing to know.

But the current Pennsylvania gas drilling oversight program is the strongest in the nation. Just ask those in the drilling industry how much oversight they experience here versus in other states. Just look at all the actions taken, some of which I have described above.

The NYT February 27th article creates a fictional narrative of lax regulation and lax oversight. It is scandalously false for the reasons stated above and in previous posts.

I became Secretary on September 2nd, 2008 and was responsible for nearly all the actions reported by the NYT but I was not interviewed until after the February 27th publication. That was not an accident. A reader probably thought I was interviewed, because I was quoted in the piece. This reporter is a skilled practitioner of the art of misleading the reader.

4 comments:

Let me begin by stating this. If you know or have spoken to John Hanger you know that no one cares more for the environment than him. You also know that few have sacrificed as much as him in order to defend the environment in the face of attack from many fronts.

If you read the facts you will clearly see that as DEP secretary Mr. Hanger was one of the most aggressive if not the most aggressive regulators in PA history. This aggressive regulation came at a time when a "gold mine" had been discovered in PA. If you have taken a few economics classes or have business sense and a little experience in the world you know that when there is money to be made corporations move in quickly. They come with their money and size which gives them considerable influence. And they usually get what they want.

John knows and despises this. As DEP secretary he was tasked with the unenviable challenge of regulating a booming and out of control industry in the face of an economic collapse. Yet, as the facts show, he still chose to aggressively regulate rather than let the drilling companies run as rampant as they had been able to.

If the NYT wants to scandalize, misreport, and misinform the public about natural gas drilling that is their choice. Personally, I can understand the need to scandalize at the NYT currently. In 10 years the NYT, WSJ, and Washington Post may be the only print media left. We all know the financial troubles of the Chicago Sun Times. However I would encourage any NYT employee reading this (and i know you are) to think about other ways to generate revenue for your business than simply selling more papers. If you come up with a good idea, that idea will be very valuable.

In the end it is shameful to attempt to crucify a dedicated and loyal public servant who has spent his life defending the "little guy" or the underdog, or to reference semi-recent political debate "main street" over wall street. Mr. Hanger would probably crucify himself for the cause of defending the environment. Yet others (including the pathetic HBO documentary Gasland) have attempted to paint him in the opposite light. Read and think about the facts and it will be clear which portrayal is true.

The problem is that for those people whose health is suffering, for those who have lost livestock or pets, the regulations simply aren't enough. There needs to be strict enforcement - the kind that only comes with many, many more inspectors, inspectors who are permitted to do their work in an unbiased fashion, instead of having to wait for permission from the gas companies to run tests, and instead of trying to run tests when they know that the flare stacks have been turned down, or the compressor stations have been turned down or off in preparation for the tests being run. The gas industry is a crooked, crooked business, and it needs far more regulations, far heavier enforcement, and very dramatic penalties in order to keep it in check.

Mr. Hanger, please understand that this issue is not a "he-said, she-said" kind of debate. There are real lives being impacted here. It goes far beyond semantics and how people may or may not have felt about the NYT article or Gasland. (If any doubt this and want to have a true experience of what residents in Pennsylvania are going through, I'd suggest a 2 month stay in the Hallowich home in Avella, PA, or in the home of a Fayette County PA family, where the parent and grandparent trade off nights, one staying awake and the other sleeping, because of sudden releases of toxic gases from the facilities near their home. They're afraid that they won't get the children out in time if they're both awake. This is no way to live.)

I'm not asking you to post this - I'm sending this to you to encourage you to think about this matter fully. I know that you have an environmental background. I also believe that you are fully aware of the problems of this industry. The experience of seeing fully both sides of the story, and of hearing the cries of people in need, has got to be soul-killing. Please step away from the industry rhetoric, and be true to what you know is right.

"The only thing necessary for evil to exist is for good men to do nothing."

Mr. Hanger, I believe you are a good man. Please be true to your conscience. Many lives are counting on you.

I live near the Fisk Hollow Site in Potter County.The company that is drilling at the Fisk Hollow Site has had many "ALT WASTE MNGMNT PRACTICE DUSTING" permits approved.I can not find the definition for ALT WASTE MNGMNT PRACTICE DUSTING" on the DEP website.

I am concerned because the Fisk Hollow site is one of the sites the NYT reported to have had high levels of radium 226 in the waste-water.

That same company has an "ALT WASTE MNGMNT PRACTICE DUSTING" permit pending authorization for a well site located on a mountain above the town of Roulette's public water source. I have asked many people working for the gas industry and I get different answers.I went to a public meeting where I asked a gentleman from Penn Gen Energy and he said he was not sure.Can you explain to me what "ALT WASTE MNGMNT PRACTICE DUSTING" is?Thank You,Laurie Barr

About Me

I am an expert on energy, environment, green economy, competitive electric markets, and utility regulation with unique experience in and out of government. I am a Democratic candidate for Governor of PA. See www.hangerforgovernor.com. You can email me at john@hangerforgovernor.com. I have been both the Secretary of the Pennsylvania Department of Environmental Protection and Commissioner of the Pennsylvania Public Utility Commission. I have made leading regulatory decisions, testified to Congress and state legislatures, and been interviewed countless times, appearing on CBS evening News, NBC Evening New, CNN, BBC, CBC, and many more outlets. I am a 1984 graduate of the University of Pennsylvania and 1979 graduate of Duke University.